Stone and Another against W. Marsh, J. H. Stracey, and G. E. Graham

[551] stone and another against W. marsh, J. H. stracey, and G. E. graham. 1827. A., B. and C. were proprietors of stock as trustees, and C. D. and E. were bankers. C. executed a letter of attorney, empowering D. and E. to sell the stock, and forged the signature of A. and B. The stock was sold and transferred in the books of the Bank of England, to the credit of the buyers, and the produce of the stock was paid into the banking-house of C. D. and E. was afterwards tried and convicted of forging a similar instrument, and executed: Held, upon an issue directed by the Lord Chancellor (it being part of the order that no objection should be taken that he was interested as a trustee, and a partner in the banking-house, that the money received by the banking-house constituted a debt due from them to the trustees. [S. C. 9 D. & E. 643; 5 L. J. K. B. O. S. 201; and at Nisi Prius, E. & M. 364. Eeferred to, Lee v. Bayes, 1856, 18 C. B. 602; The Princess Royal, 1870, L. E. 3 A. & E. 46; Midland Insurance Company v. Smith, 1881, 6 Q. B. D. 570.] This was an issue directed by the Lord Chancellor to try whether the defendants and one Henry Fauntleroy were, at the date and issuing forth-of certain commissions of bankrupt against the defendants and H. Fauntleroy, indebted to the plaintiffs and H. Fauntleroy in any and what sum of money, his Lordship having ordered that on the trial of that issue no objection should be taken to the proceeding to the final 6B. & C. 582. STONE V. MARSH 555 determination of the said issue, on the ground that Fauntleroy was interested as a trustee jointly with the plaintiffs, and also a partner with the defendants. At the trial before Lord Tenterden C.J. at the London sittings after Hilary term 1826, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case: On the 26th day of May 1819, there was standing in the books of the Governor and Company of the Bank of England, in the name of the plaintiffs jointly with H. Fauntleroy deceased, the sum of 17,0611. 12s. 4d. in the capital stock of Navy 5 Per Cent. Annuities, which were held by the plaintiffs and Fauntleroy as trustees under the will of Sir Thomas Bemers Plaistow deceased. The defendants and Fauntleroy, and Sir J. Sibbald, Bart., until the death of Sir J. Sibbald, and the defendants and Fauntleroy, since the death of Sir J. Sibbald, carried on the business of bankers in Berners-Street, under the firm of March and Co. On the 25th of May 1819 instructions were given by the house of March and Co. [552] to their broker J. H. Spurling, to sell as much of the said stock as would produce 16,0001. sterling; previously to which time there had been lodged at the Bank of England a letter of attorney purporting to be executed by the plaintiffs and Fauntleroy, to sell, assign, and transfer all or any part of 16.0001. part of the said annuities, which letter of attorney was executed by Fauntleroy; but the execution thereof by the plaintiffs was forged by Fauntleroy. Pursuant to such instructions, Spurling entered into contracts with various stock-jobbers for the sale to them of 15,8111. 13s. of the said Navy 5 Per Cent. Annuities, at prices which upon the whole yielded 16,0191. 15s. 4d., the 191. 15s. 4d. being the amount of the brokerage. On the 26th May 1819, J. H. Spurling caused transfers to be prepared in the books of the Governor and Company of the Bank of England, of part of the said annuities to the amount of 70001., to the purchasers thereof or their nominees; and on that day the defendant J. H. Stracey attended at the bank and signed the demand to act indorsed on the said power of attorney, and then executed two several instruments of transfer so prepared in the books kept at the Bank of England, of two sums, part of the annuities, viz. 68951. 10s. 6d., to the Eev. W. Yates and T. Norris, Esq., and 1041. 9s. 6d., to one Henry Neil; and the annuities were thereupon carried by the governor and company to the credit of the said transferees in the books kept at the Bank of England for transfer thereof, and the plaintiffs and Fauntleroy ceased to have credit for the same in the said books kept at the bank. On the 28th day of May 1819, the residue of the annuities was in like manner transferred to the purchasers, the instruments of transfer having been executed by Graham; [553] and the annuities were thereupon carried by the said governor and company to the credit of the transferees in the books kept at the Bank of England for transfer thereof, and the plaintiffs and Fauntleroy ceased to have credit for the same in the said books kept at the bank. The defendants' house had an account with Messrs. Martin, Stone, and Co., bankers in the city, in the usual way of a banker's account; and a pass-book went from one house to the other from time to time, according to the usual practice between bankers and their customers; and to this account Spurling, the broker, usually paid the money received by him for stock sold by order of the defendants' house. The consideration-money of the annuities was received by Spurling, and was paid by him to Martin, Stone, and Co., to the credit of the house of Marsh and Co., according to the usual practice, together with the sum of 91. 17s. 8d., one moiety of the broker's commission, which was allowed by him to the house of Marsh and Co., according to the usual practice on sales effected by him on their account; since which payment the account of Marsh and Co. with Martin and Co. had been frequently...